Not so much, according to a 4-3 decision from the Ohio Supreme Court:

“Coparenting” is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. “Coparenting” can have many different meanings and can refer to many different arrangements and degrees of permanency. The parties’ use of the term, together with other evidence, however, may indicate that the parties shared the same understanding of its meaning and may be considered by the trial court in weighing all the  evidence.

The court in In re Mullin rejected a claim for shared parental custody despite written agreements.  More on ConLawProfBlog, including opinion, here.

~Ruthann Robson

UPDATE: The word from Carl is that the Department of Taxation and Finance will permit joint filing by married same-sex couples, without a change in the Tax Law, based on the language in the Marriage Equality Act. Guidance to that effect should be coming out in the next few weeks.

Carlton Smith, Clinical Associate Professor of Law and Director of the Tax Clinic at Cardozo Law School (and a former colleague of mine from Roberts & Holland), brought a tax issue raised by New York’s Marriage Equality Act to my attention and graciously gave me permission to blog about it.

Section 651(b) of the New York Tax Law requires a “husband and wife” who file separate federal income tax returns to likewise file separately for New York state income tax purposes (and, conversely, generally requires married couples who file jointly for federal income tax purposes to file jointly for New York state income tax purposes as well). As Carl points out:

Since the Defense of Marriage Act currently prohibits the filing of joint federal income tax returns by gay married couples, that means all gay married couples in New York will not be able to file a joint New York income tax return this year, unless (a) the statute is changed to permit gay couples an exception from 651(b)(1) or (b) the DTF [Department of Taxation and Finance] issues guidance giving gay couples such an exception.

There is nothing in the text of the Marriage Equality Act that specifically changes this rule. Nevertheless, there is language in the Act that would support taking a broad interpretation of the Tax Law to avoid the inequities created by the federal government’s failure to recognize same-sex marriages celebrate in New York. In particular, the Act states:

It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law. The omission  from this act of changes to other provisions of law shall not  be  construed  as  a  legislative  intent  to  preserve  any  legal distinction  between  same-sex  couples  and  different-sex couples with respect to marriage.

In the spirit of this language in the Marriage Equality Act, one could take a narrow interpretation of § 651(b) as applying only to different-sex married couples. References in the text of this section to “separate” and “joint” federal returns are keyed into the federal filing statuses–and, more particularly, to filing statuses that apply only to married different-sex couples. In other words, married same-sex couples might file “separate” returns in the colloquial sense of that word, but their federal filing status cannot (at least for now) be “married filing separately” or “married filing jointly”; rather, by dint of the application of the federal Defense of Marriage Act, their filing status is “single.” So, one could construe § 651(b) as simply being inapplicable to same-sex couples because they cannot file either “joint” or “separate”–but only “single”–federal income tax returns. With a lacuna in the New York Tax Law, that would seem to open the door to the Department of Taxation and Finance to “[m]ake such reasonable rules and regulations, not inconsistent with law, as may be necessary for the exercise of its powers and the performance of its duties.” N.Y. Tax Law § 171.
Let’s hope that the legislature either corrects this oversight or the Department of Taxation of Finance relies on this language from the Act to interpret the Tax Law to permit same-sex couples to elect to file either separately or jointly for New York state tax purposes.

-Tony Infanti

It’s funny, when I was writing my dissertation many years ago, my adviser said to me: “Katherine, you’re really a libertarian when it comes to gender, aren’t you?”  At the time I resisted the moniker, but is “libertarian” worse than “liberationist”?  Who, on the 4th of July of all days, wouldn’t want to be called a “liberationist” after all?

That’s what Ross Douthat in the New York Times Op-Ed page called me on Monday:

At the other end of the spectrum from Rauch’s gay conservatism are the liberationists, who hope that gay marriage will help knock marriage off its cultural pedestal altogether. To liberationists, a gay rights movement that ends up reaffirming a “gold standard” for relationships will have failed in its deeper mission — which Columbia law professor Katherine M. Franke recently summarized in a Times Op-Ed article as the quest for “greater freedom than can be found in the one-size-fits-all rules of marriage.”

That’s the kind of argument that makes social conservatives worry about polygamy (and worse). But liberationism has been gradually marginalized in the gay community over the last two decades, and gay conservatism seems to have largely carried the day. The desire to be included in an existing institution has proved stronger than the desire to eliminate every institutional constraint.

He contrasts my view, penned in a NYT Op-ed on June 23rd, with that of Dan Savage, who was profiled in a Times Magazine cover story last Sunday.  Savage is a big fan of marriage – for both same- and different-sex couples – while arguing that some of the rules of marriage could and should be negotiated between the parties.  I find his position puzzling: why not be an advocate for domestic partnership or other extra-marital forms of commitment that allow a couple to signal commitment to one another (you can have the big party, recite vows to one another in front of family and friends etc), but according to terms they agree on rather the ones the state insists upon.  Remember, marriage is, after all, a license – and the state stays involved as a third party in the deal and its rules are non-negotiable (perhaps more importantly for Savage’s position, adultery remains a felony in New York state).

It strikes me that Savage wants it all: the economic, social and legal benefits of marriage and the respectability it brings while opting out of the rules of marriage he doesn’t care for.  Of course Savage won’t get prosecuted for adultery when he has one of his non-promiscuous, extra-marital sexual nights out.  But others might not be so lucky, such as when their husband is fighting them for child custody or this kind of fling would count as breaking parole).  Non-monogamy within the pickets of marriage is the best he can do in thinking through the implications of same-sex couples marrying?  Really?  As the Times story points out: “He is capable of pro-family rants that, stripped of his habitual profanity, would be indistinguishable from Christian-right fund-raising letters.”

Savage’s “It Gets Better” video suffered from a similar form of well-meaning, but small-minded sentiment.  Savage and his boyfriend Terry Miller’s video delivered the message that if you just tough it out, you too can walk the streets of Paris with your fabulous homo-family and enjoy an upper class privileged life as they have.  But class, race, gender, under-education and other structural hurdles to walking the Champs Elysee as fabulous and happy metro-gays remain unaddressed by Savage’s nice liberal message.  Their video launched a whole new movement of “It Gets Better” videos aiming to offer a friendly hand to kids who are struggling with their sexual desires in hostile circumstances, and many of them surfaced a more complex message than did Savage and Miller’s.  For this we can thank them.

As for his views on marriage and what he calls “monogamish,” it’s not that I’m a big advocate of monogamy, but what gets me about a politics driven by Savage’s views is that it leaves marriage in tact as the “gold-standard,” to borrow Ross Douthat’s term today, for social, legal and economic value.  Those folks whose lives can’t or won’t fit into the marital form, whatever their commitment to monogamy, get screwed – the pun is intended here.  Marriage, a regime by which the state licenses relationships, is otherwise left undisturbed as what comes in between “love” and “the baby carriage.”

What is more, gender, class and other kinds of power that create asymmetries, if not inequalities, in a relationship seem to fade from view in his defense of “monogamish”.  The best approach, by Savage’s way of thinking, “is smarter boundaries, not hard-line rules about monogamy.”  After all, he says, “straight women, are in relationships with men. Doesn’t it help to know what we’re really like? Women can go on marrying and pretending that their boyfriends and husbands are Mr. Darcy or some RomCom dream man. But where’s that going to get ’em? Besides divorce court?”  Is that the best he has to offer in a week when Dominique Strauss-Kahn basically got away with not having to answer charges of rape?   A gender-based double-standard did the trick for him: this is just the kind of guy he is, and she was a big fat liar about all sorts of stuff, mostly none of it to do with what did nor did not happen in DSK’s hotel room.  Men will be men, women are, well, liars – especially poor, immigrant, women of color.

I was on Brian Lehrer’s show the other day and I mentioned at the end of the segment that some employers allow each employee to pick a person, be they a spouse, a domestic partner, a sibling or a needy friend, to put on their health insurance.  “In the U.S. we distribute health care through employment, but there’s no reason why it has to be then portalled through the very narrow channel of marriage,” I argued (with the use of a rather convoluted set of metaphors – ah, live radio!).  Lehrer’s reaction indicated that this was kind of a kooky suggestion.  I regret that Savage’s engagement with marriage gives us little to negate the seeming kookiness of distributing benefits and respectability to a broader group of people, those who actually need them, as opposed to those who have been forced to marry to get them.

So maybe Douthat’s right – I’d love to liberate us all from marriage – not just because of marriage’s monogamy requirement, but because the state shouldn’t be in the business of licensing love.  Period.

Happy 4th of July from a true advocate of liberty!

Cross posted from the Gender & Sexuality Law Blog and from the Huffington Post.

The Williams Institute has issued another round of their census snapshots. This week: Alaska, Colorado, Connecticut, Nebraska, and North Carolina. And they made my job a lot easier this week by including this table with the snapshots:

The female/male ratio of same-sex couples in these states is 68/32 for Alaska, 64/36 for Colorado, 64/36 for Connecticut, 71/29 for Nebraska, and 64/36 for North Carolina.

-Tony Infanti

Two weeks ago, the Bankruptcy Court for the Central District of California ruled that the Defense of Marriage Act was unconstitutional.  The case involved two men who were legally married in California (in that small window of legality back in 2008).  The U.S. Trustee said they couldn’t file as a married couple because of DOMA, but the Bankruptcy Court found, in a resoundingly strongly worded opinion, that DOMA violated their equal protection rights as guaranteed by the Fifth Amendment.

There were many amazing things about the opinion.  First, it was signed by 20 of the 24 bankruptcy judges from the Central District, including the Chief Judge.  Second, it relied heavily on Attorney General Eric Holder’s memo stating that the DOJ was not going to defend the constitutionality of DOMA.  Third, it found DOMA unconstitutional under heightened and rational basis review.  Fourth, it talked about discrimination based on sexual orientation and gender.  In sum, it was an amazing opinion for those who have been saying for a long time that DOMA is patently unconstitutional.  And, with the Obama administration publicly stating that it is no longer defending the constitutionality of DOMA, the decision was safe….

Until earlier this week, when the administration threw its previous statement completely out the window and appealed the decision of the Bankruptcy Court.  The U.S. Trustee, controlled by the Department of Justice, which is headed by Attorney General Holder, decided that the United States must defend the constitutionality of a statute that the administration has said is unconstitutional.  Moreover, the Trustee is appealing a decision that explicitly relies on the Trustee’s overseer’s rationale in finding the law unconstitutional.

The Trustee has some logic behind the appeal.  In the appeal, the Trustee explained: “Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.”

The Trustee is evidently pointing to the following language from General Holder’s letter: “Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.   To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.   This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.”

I think it’s quite clear that the Trustee has misread the Holder letter.  Although it’s true the Holder letter states that Executive Branch officials shall continue to enforce DOMA, the letter also clearly states the the Department of Justice, which the Trustee’s office is a part of, will “advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard.”  Moreover, “the Department will cease defense of Section 3.”  The letter is setting up a distinction between executing the law, which the Executive Branch will continue to do, and defending the law, which it will no longer do.

By appealing, the Trustee is not simply executing the law but is defending the law.  This is a direct contradiction of Holder’s letter which says the Department will not defend the law.  There are only two conclusions then: one, the Trustee is taking action beyond its authority as a member of the Department of Justice or two, President Obama, consistent with his completely non-sensical and clearly politically-calculated position on gay marriage, is going back on the Holder letter from earlier this year.

I sure hope it’s the former.

The Rhode Island legislature has passed a civil unions bill and sent it to the state’s governor for his signature. Governor Chafee has indicated that he will sign the bill even though it is opposed by LGBT rights organizations.

The opposition to the bill stems from its protections for religious organizations. Here is the pertinent language from the bill:

15-3.1-5. Conscience and religious organizations protected. – (a) Notwithstanding any other provision of law to the contrary, no religious or denominational organization, no organization operated for charitable or educational purpose which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required:

(1) To provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization, certification, or celebration of any civil union; or

(2) To solemnize or certify any civil union; or

(3) To treat as valid any civil union;

if such providing, solemnizing, certifying, or treating as valid would cause such organizations or individuals to violate their sincerely held religious belief.

The first two provisions are not uncommon in bills extending the right to marry to same-sex couples or creating civil unions or domestic partnerships. The third, however, is not typical. In essence, even though parties to a civil union nominally have all of the “rights, benefits, protections, and responsibilities” associated with marriage in Rhode Island, the reality is that, under this third provision, religious organizations will, based on “sincerely held religious belief,” be able to decide that civil union partners really shouldn’t get the benefits or protections promised by the state. This goes entirely too far, in my opinion.

Unlike Katherine Franke, I view marriage-equivalents, whether denominated civil unions or domestic partnerships, as a form of second class status. There is no greater freedom to arrange your legal relationship to your spouse through a civil union or a domestic partnership that provides all of the rights and obligations of marriage than there is through a marriage. It is still one-size-fits-all, because the only difference between the two relationships is the name. But, in the case of Rhode Island, even full second-class status is denied to same-sex couples by essentially giving religious organizations a veto power over the state’s civil recognition of a couple’s relationship.

The LGBT rights organizations are correct in urging Governor Chafee to reject this bill.

-Tony Infanti

Health and Human Services Secretary Kathleen Sebelius has announced that HHS is going to begin collecting health data on LGBT populations:

“Health disparities have persistent and costly affects for minority communities, and the whole country,” Secretary Sebelius said.  “Today we are taking critical steps toward ensuring the collection of useful national data on minority groups, including for the first time, LGBT populations.  The data we will eventually collect in these efforts will serve as powerful tools and help us in our fight to end health disparities.”

H/t to the Huffington Post.

-Tony Infanti

I posted last week about an Arkansas newspaper that refused to publish the name of a deceased man’s surviving partner unless they were paid $85 (they print the names of surviving spouses for free). In the post, I criticized GLAAD for paying the $85 fee and getting only a vague promise that the newspaper would revise its obituary policy to avoid this problem in the future.

Well, it appears that the newspaper reneged on even its vague promise. From The Advocate:

GLAAD officials said they had received assurances from the paper last week that it would rerun the obit, revise its policy, and apologize to James, but instead it published an editorial saying the paper had made its policy clear to him — it does not run names of unmarried partners in obits — and accusing James of lying and pursuing an “agenda.”

Now, GLAAD and HRC have put together petitions to get the newspaper to reverse course. The petitions can be found here (for GLAAD) and here (for HRC).

-Tony Infanti

I have written elsewhere about how the costs imposed on same-sex couples to have their relationships recognized can be reconceptualized as a tax on them. The Advocate has another example of such a cost–this one imposed privately but relying on the public denial of recognition to/imposition of costs on same-sex couples as a reason for asking same-sex couples to pay for privileges that heterosexuals take for granted:

When John Christopher Millican died June 11, his partner of 10 years, Terrance James, filled out paperwork to have his obituary run in the local paper, The Batesville Daily Guard. When the obit was published, however, it did not include James’s name, but it did list Millican’s deceased parents and surviving siblings, with whom he had little contact, according to the Center for Artistic Revolution, an Arkansas gay rights group.

James complained, but an editor for the Daily Guard told him the paper has a policy against printing names of unmarried partners and cited the fact that Arkansas does not recognize same-sex unions. She told him, however, that the paper would run a paid obituary for $85 that would include any information he wanted. (Most smaller newspapers run obituaries free of charge; in larger cities, the obits of prominent people run as news items, while other death notices carry a fee.) This led to an action call on Change.org and coverage in many gay news outlets.

Put differently, the newspaper is happy to recognize different-sex couples for free and will do the same for same-sex couples, if they pay them $85!

The solution? GLAAD is going to pay the $85 fee and the newspaper is going to donate the money to a charity chosen by Terrence James. The newspaper is also going to revise its policy–precisely how was unspecified–“to avoid this situation arising again.”

Why did GLAAD pay the $85? If this is really a matter of equality and, in GLAAD’s words, an “awful injustice,” shouldn’t the fee have been waived instead of being donated to charity? Wouldn’t that have been an appropriate first step toward correcting and revising this insulting and demeaning policy?

-Tony Infanti

Following up on my post last week, the Williams Institute has released snapshot reports from the 2010 census this week for California, Delaware, Kansas, Pennsylvania, and Wyoming.

According to the census, there are 125,516 same-sex couples in California (or 9.98 per 1,000 households). Fifty-three percent are female and 47% are male, and only 21% of these same-sex couples are raising children.

In Delaware, there are 3,352 same-sex couples (or 9.79 per 1,000 households). Sixty percent are female and 40% are male, and 19% are raising children.

In Kansas, there are 6,176 same-sex couples (or 5.55 per 1,000 households). Seventy-one percent are female and 29% are male, and 26% are raising children.

In Pennsylvania, there are 33,602 same-sex couples (or 6.70 per 1,000 households). Sixty-three percent are female and 37% are male, and 20% are raising children.

In Wyoming, there are 1,147 same-sex couples (or 5.06 per 1,000 households). Seventy-three percent are female and 27% are male, and 28% are raising children.

Again, information regarding the top counties and cities is also available.

-Tony Infanti

I’ve blogged before about employers who “gross up” their LGBT employees to cover the extra taxes that they pay on their domestic partner health insurance coverage. The New York Times has now put together a chart listing the growing number of employers who do so (the chart is at the bottom of the page that I’ve linked to; before the chart is an explanation of the problem and the responses to it). (h/t to Paul Caron at TaxProf)

-Tony Infanti

From The Advocate:

The United Nation’s Human Rights Council has approved for the first time a resolution condemning discrimination and violence against LGBT individuals.

In the resolution, passed Friday in Geneva, the council “[expresses] grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity[.]”

By a 23-19 vote with three abstentions, the resolution calls for the UN’s High Commissioner to initiate a worldwide study on “discriminatory laws and practices and acts of violence” — research that would be reviewed by the Human Rights Council in a session next year. The measure was introduced by South Africa.

In its report, however, the Associated Press noted that “African and Islamic countries, led by Nigeria and Pakistan, slammed the resolution saying it had ‘nothing to do with fundamental human rights.’”

Nonetheless, Mark Bromley of the Council for Global Equality told The Advocate that “[t]he fact that South Africa broke with the rest of the Africa block at the UN to lead this resolution helps tremendously in dispelling the notion that LGBT rights are imposed Western constructs.” He went on to say that “[t]his should help the debate significantly in Africa and elsewhere, where the laws and the violence have been pronounced.” The Advocate story also indicated that Zambia (where sodomy is punishable by up to 10 years in prison) and Burkina Faso were among those who abstained, which Bromley noted as “a positive sign that the African block is not as unified in opposition as they have been in the past.”

-Tony Infanti

The Williams Institute has begun releasing snapshot reports from the 2010 census and will continue doing so each week throughout the summer. This week: Hawaii and Alabama.

According to the census, there are 4,248 same-sex couples in Hawaii (or 9.33 per 1,000 households). Fifty-three percent are female and 47% are male, and only 23% of these same-sex couples are raising children.

In Alabama, there are 11,259 same-sex couples, but only 5.98 per 1,000 households. Sixty percent are female and 40% are male, and 27% are raising children.

For those interested, the snapshots also include the top counties and cities within these states ranked by number of same-sex couples per 1,000 households (including only those with more than 50 same-sex couples).

-Tony Infanti

Chief Judge James Ware of the U.S. District Court for the Northern District of California has ruled that Judge Vaughn Walker need not have recused himself from the Prop. 8 case because he was in a long-term same-sex relationship. Judge Ware concluded that:

In a case that could affectthe general public based on the circumstances or characteristics of various members of that public,the fact that a federal judge happens to share the same circumstances or characteristic and will onlybe affected in a similar manner because the judge is a member of the public, is not a basis fordisqualifying the judge under Section 455(b)(4).

Judge Ware found that any benefit Judge Walker would have reaped from the ruling was “speculative” and “too attenuated to warrant recusal.” Judge Ware also noted that:

Requiring recusalbecause a court issued an injunction that could provide some speculative future benefit to thepresiding judge solely on the basis of the fact that the judge belongs to the class against whom theunconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such anunworkable recusal statute.

Judge Ware also rejected the notion that Judge Walker had a greater interest in the case because he is gay:

The fact that this is a case challenging a law on equal protection and due process groundsbeing prosecuted by members of a minority group does not mean that members of the minoritygroup have a greater interest in equal protection and due process than the rest of society. In oursociety, a variety of citizens of different backgrounds coexist because we have constitutionallybound ourselves to protect the fundamental rights of one another from being violated by unlawfultreatment. Thus, we all have an equal stake in a case that challenges the constitutionality of arestriction on a fundamental right.

Interestingly, Judge Ware not only found that Judge Vaughn need not have disclosed his relationship to the parties, but actually argued that it would not have been appropriate to do so:

In fact, the Court observes that Judge Walker, like all judges, had a duty to preserve theintegrity of the judiciary. Among other things, this means that if, in an overabundance of caution, hewere to have disclosed intimate, but irrelevant, details about his personal life that were notreasonably related to the question of disqualification, he could have set a pernicious precedent.Such a precedent would be detrimental to the integrity of the judiciary, because it would promote,incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming.

Unsurprisingly, the Prop. 8 supporters who brought this motion to vacate have indicated their intent to appeal the ruling.

-Tony Infanti